HOUSTON – Brushing a fresh coat of opaque latex on a topless dancer isn’t enough to skirt a rule imposing a fee on sexually orientated businesses, a Texas appellate court recently found.
Texas BLC (an association of bikini/latex clubs) denies their entertainers are topless because they are covered with opaque latex applied in a liquid state.
The Comptroller of Public Accounts adopted a rule with an interpretation of “clothing” to determine which businesses are sexually oriented and therefore subject to the statutory fee.
The rule requires business owners to pay the fee if entertainers are nude and alcohol is consumed in the establishment.
Under the rule, Texas BLC’s members are considered sexually oriented businesses and have to pay the fee.
Court records show Texas BLC sought a declaratory judgment under the Administrative Procedures Act (APA) to declare the Comptroller’s rule invalid. When a trial court held the rule invalid, an appeal soon ensued.
On Aug. 18, the First Court of Appeals reversed the lower court, rendering a judgment that the Comptroller’s rule is valid under the APA.
“Texas BLC argues that the SOBF statute is ‘visibility driven’ and dependent on the content of the material or method of concealment,” the opinion states. “That argument would render the word ‘clothing’ as used in the statute immaterial, and we are bound to give effect to all parts of the statute.
“Our task in this appeal, however, is not to formulate a precise definition of clothing but to determine whether the Comptroller’s rule contravenes the statute.”
Appeals case No. 01-18-00554-CV